§ Order read for resuming adjourned debate on Question [2nd May], That the Bill be now read the Third time.
§ Question again proposed.
§ 11.18 a.m.
§ Mr. Graham Page (Crosby)
On a point of order. In moving the Third Reading of the Bill on 2nd May, my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) was called at six minutes to four o'clock. Although he gave an admirable summary of the Bill, he could not in that time do it justice. My hon. and learned Friend the Member for Bolton, East (Mr. Philip Bell) rose just before four o'clock and his speech, too, was cut short.
Might it not be for the convenience of the House if a more detailed exposition of the Bill were given? My hon. Friend the Member for Hendon, South has asked me to apologise to you, Mr. Speaker, and to the House, for his absence today on other Parliamentary business and he has asked me, as it were, to take charge of the Bill for him. Would it be convenient if I were to catch your eye and put the case for the Bill in more detail than my hon. Friend was able to do at that time, and to treat the short speech of my hon. and learned Friend the Member for Bolton, East, as an intervention, so that he could speak later?
§ Mr. Speaker
The hon. and learned Member for Bolton, East (Mr. Philip Bell) had the Floor of the House when the proceedings were interrupted under the Standing Order, on 2nd May, so he is now entitled to resume his interrupted speech on the adjourned Second Reading debate. As to a further exposition of the merits of the Bill, if the hon. Member for Crosby (Mr. Page) rises and tries to catch my eye I shall endeavour to perceive him. I have no doubt that any blanks left by the hon. Member for Hendon, South (Sir H. Lucas-Tooth) will be adequately filled in by him.
§ 11.20 a.m.
§ Mr. Philip Bell (Bolton, East)
I would have been quite willing to treat my short observation as an intervention, but the rules are sacred and I should, perhaps, 786 briefly state the objections which I had embarked upon when the House adjourned a fortnight ago. I had started by emphasising that the question of ordering maintenance for what I loosely described as the guilty one was a matter upon which the Royal Commission on Marriage and Divorce was divided. Thirteen members were in favour of the recommendation and eight were against it. When the House adjourned I was in the course of referring hon. Members to the passage in the Report where the reasons for the objecting members were set out. They will be found on page 138 of the Report, in paragraph 503.
The weight of their objections is stated in this way:Six of us think it wrong in principle that a husband or wife should be called upon to maintain a guilty spouse. It is a rule of the common law of England that a husband's liability to maintain his wife during the marriage ends if she commits adultery and is suspended if she deserts him. The statutory deviations from this rule may be explained on the assumption that the legislature wished to ensure that a wife should not be left completely destitute. We doubt whether that could happen nowadays because, even if a woman cannot find employment, she may ask for national assistance. A husband may well preserve some kindly feelings towards the wife he has divorced and, if she has been left destitute, it is open to him voluntarily to make her an allowance. That is quite different from compelling him to provide for her. We consider, therefore, that a spouse who has had a decree or order made against him or her based on the commission of a matrimonial offence should not have any right to apply to the court for maintenance.They then mentioned the question of incurable insanity and stated that they do not contemplate any change being made.
That was the weight of their reasons, and the House will note that they used the rather interesting and old-fashioned word "principle." The paragraph begins:Six of us think it wrong in principle.The Report sets out why the statutory deviations from the rule exist. The original divorce legislation was by Act of Parliament, as is referred to in paragraph 478. Before 1857, when an Act of Parliament was necessary, only wealthy people could afford that expensive process. Accordingly, when the question of the maintenance of a guilty spouse came up, there was usually a rich husband—indeed, both parties were usually well-established, financially—and it was not unknown even in those days for the 787 passage of legislation of a private nature to be sweetened by the promise of an allowance to the former wife.
The paragraph states that consideration would be given to the fact thather defection was accompanied by palliating circumstances.Therefore, in a certain sense the maintenance of a guilty spouse was an exceptional procedure. The Report points out that the power to order an allowance in favour of a guilty wife has been used sparingly, and in cases where the wife would have suffered great hardship if the order had not been made.
Clause 3 of the Bill enables the guilty wife to make a claim against the estate of her former husband. That provision was one of the successful features of the Intestates' Estates Bill, which my right hon. and learned Friend the Solicitor-General steered through this House on a Friday in 1952.
Clause 3, endeavours to reproduce the recommendations of the Report, substituting only for the word "wife" what I. may call the "ex-wife". Curiously enough, that specific provision adheres in the recommendations of the Report at page 143, and it does not appear on the face of it that there was a minority Report. The paragraph giving the original objections of the minority of members said that they thought it was wrong in principle that a husband or wife should be called upon to maintain a guilty spouse, and I submit that they must have been objecting not only to a claim against an existing husband during his life but also to a claim against his estate after his death—although their disagreement is not specified there.
Clause 3 deals with the mechanics of the situation. I submit that it is clear that it is endeavouring to deal with an exceptional case, and many people think that that is not a very good principle upon which to base legislation. I say that it is an exceptional case because, under subsection (4), the court is directed to have regard to a number of matters, most of which indicate that the court must be rather cautious before allowing the ex-wife to make any claim against the estate. It says:the court shall have regard (a) to any past, present or future capital of the applicant and to any income of hers … (b) to her conduct in relation to the deceased and otherwise.788 This provision is difficult to reconcile with elementary justice. Just think of the position in the case of a man who had had ample reason for divorcing his wife—she having proved herself to be wholly unworthy and disregarding all the obligations that she had undertaken—and had remarried, leaving after his death his second wife and children. The ex-wife may then make a claim. The husband is not there to give his version of her conduct. He is not there to say, "I had ample grounds to divorce her. It is untrue to say that there were matters which she did not or could not bring up at the divorce action". In fact, to the embarrassment of his second wife and children, she could go before the court and tell the most fantastic stories about his conduct during his life, which she had never mentioned before.
I may well be said that a court would look with suspicion at that sort of evidence, and perhaps disregard it. That may be so, but a great deal of damage would be done, to the feelings of the second wife and children, and to relations generally. Not only that; as experience has shown to some extent, under the Inheritance (Family Provisions) Act, it is a very powerful weapon in the hands of a wife—and certainly an ex-wife—that she can come forward, very often with legal aid, and say, "Unless some maintenance is paid to me I will pursue this matter, and if I fail you still have to pay your costs, and any order made against me is ineffective."
The guilty ex-wife has two strong cards. First, she gives evidence of her conduct in relation to the deceased which he cannot deny, and, next, she is in a position in which, to a certain extent, she can hold up the estate to ransom. It is subsection (4) which indicates that this is an exceptional matter, for it allows the court to take into accountany other matter or thing which, in the circumstances of the case, the court may consider relevant or material in relation to her, to persons interested in the estate of the deceased, or otherwise.The effect of this is that, because there might be what is described as a hard case to one of the parties, the whole burden is put on the court to decide not on any question of principle, but on a question entirely of hardship. This is where I think we should get back to the matter of principle. I do not believe 789 myself that hardship is a good guide to right actions. I do not believe that hardship is an excuse for stealing. I do not believe that hardship should outweigh matters of ordinary justice, or, as the minority put in their Report, matters of principle.
There is something to be said—indeed, I think myself that there is a great deal to be said—for treating marriage as an indissoluble act, and one which does not permit remarriage. There is something to be said for accepting a system of divorce where a marriage has broken down. In the first case, where marriage is indissoluble and no remarriage is allowed, it is according to Christian ethics, whatever the wife did for better or worse, that the husband, and, indeed, perhaps his estate, should be liable to support her, not according to the station in which she had been accustomed to live, but to make sure that she is not in penury.
But what is to be said for a form which, first, says that we accept divorce, except all the financial provisions for the wife, and the husband can be released entirely from the obligations which he undertook, but subject only to this—that the guilty wife, or indeed the guilty husband, shall, for purposes of money, still treat the relationship between the parties as having some existence? I find it difficult to accept that compromise on any grounds of principle, and I suggest that principle is a matter of importance.
Let us look at it once more from the general context. Whatever views we may take about divorce—and we are all agreed that marriages, if possible, should continue, and that that is desirable—can it be a good thing that the sense of duty or loyalty of the first wife or ex-wife should have the temptation to say, "It does not very much matter, because I cannot entirely be discarded, and will still have a claim against his estate"? By putting in these words in the Clause, we remove some kind of check upon that complete sense of irresponsibility.
I myself would therefore suggest to the House, without harshness or Philistine savagery, that it is better for the general community that it should treat guilty wives on an entirely different plane from the loyal and devoted wife, and that it is wrong, in these days, at any rate, whatever it may have been 790 before, to confuse the husband and his relations, when they come to deal with his estate, with the possibility of a claim by somebody who has been long forgotten, and, perhaps for twenty years, has had nothing to do with them, because that person finds an opportunity to get some share of the estate. It can only be disruptive to the law of divorce, which should carry out its logical consequences.
If it be right that a marriage should be dissolved, it should be right, also, that it should be dissolved completely and absolutely, and that the community and the State should face the consequences of that decision. This is an attempt to avoid the consequences of the decision on divorce, and I believe that it is the worst of all worlds. For these reasons, I myself would not support a Bill which includes Clause 3.
Finally, may I say that it is a matter of regret to me that I did not take such steps as were open to me to raise these points at an earlier stage. At this late stage, I admit that mistake, and that act of negligence on my part, but I felt that it would be almost discourteous to allow the Bill to go through on the nod without, at any rate, some discussion on the views of the minority as expressed in the Report. For these reasons, I find myself unable to support this Bill with the inclusion of Clause 3 and the Clauses relating thereto.
§ 11.36 a.m.
§ Mr. Stephen McAdden (Southend, East)
The whole House will be grateful to my hon. and learned Friend the Member for Bolton, East (Mr. Philip Bell) for having, even at this late stage, as he himself says, raised this interesting point, when the House was, in fact, about to give a Third Reading to the Bill.
I should like to intimate to the House the principles by which I find myself guided in approaching the Third Reading of any Bill, or any Private Member's Bill. When Private Members' Bills are considered in the House, as a good number of them are, it is quite impossible, or at least difficult and perhaps a little irksome, for ordinary back benchers not trained in the law fully to understand all the implications that are involved.
The language of lawyers is not easily understood by ordinary mortals, and, consequently, we have to rely to a certain 791 extent upon some other factors to give us guidance in deciding, on Bills of this kind, whether to support them or not. For my own part, I first look at the names of the Members supporting the Bill. If, as in this case, they are the names of hon. Members of repute, whose judgment we have learned to trust over the years, one does not bother to probe too deeply.
Therefore, it is important to pay tribute to my hon. and learned Friend the Member for Bolton, East for drawing our attention to a defect in the Bill, because, as I understand, there has been no real discussion on this Bill at all at any stage. It would seem to me that one of the advantages of our Parliamentary system is that when Measures are introduced into Parliament there is usually a full opportunity for discussion on Second Reading, and later in Committee, on Report and on Third Reading, so that not only hon. Members but the general public have the opportunity, from following the debates in the House and by public and Press comments upon them, to see whether such defects exist, so that pressure can be brought to bear on the interested parties to remedy those defects in the legislation as it goes through.
In this case, there has not been that full and ample discussion, although the opportunity was provided for it. In fact, no discussion of any importance took place. Consequently, that is how this Bill comes to us on Third Reading, and it would undoubtedly have gone through on an earlier occasion but for the fact that my hon. and learned Friend, only a few minutes before 4 o'clock, drew our attention to these provisions, which seem to me such that the House ought to consider them very seriously.
It would be wrong for the House to let it go forth that we believe it is right so to alter the law that a guilty spouse should be able to take proceedings against the estate of her former husband to the detriment, very possibly, of his then wife or widow and surviving children. Nobody wants to see anybody living in hardship, and I thought that the Welfare State had made it certain that the most severe hardship had been taken away from ordinary people; but in this case it would seem that it is possible for a faithless divorced wife to secure, by legal right, permission to proceed in the 792 courts against her former husband. What I object to is that she should have this right to proceed against her former husband's estate conferred upon her by law.
I appreciate that people may be divorced and still retain some limited affection for and some responsibility to look after each other in difficult times, but a decision of that kind should be taken by the innocent party while living, by giving some indication, perhaps in a will, of the desire for some provision to be made in the event of disaster falling upon the former spouse. However, what I believe is unthinkable is that the House should so alter the law as to confer upon the guilty party a right which that party does not possess at this moment, and a right from which the party has been alienated by the divorce proceedings.
For those reasons, I hope that those who are learned in the law—I am not learned in it at all—will be able to explain to ordinary back-bench Members of Parliament who have not the benefit of legal training why they think it right that the law should be altered in this way. The effect will be what I consider to be wrong—the conferment of a legal right upon a guilty person to proceed against the estate of a former spouse.
I am most grateful to my hon. and learned Friend, and so ought the House to be, for the fact that those who are skilled in the law can find time to give us the benefit of their legal experience on these complicated matters which, in the nature of things, must be far beyond the ken of ordinary Members of Parliament.
§ 11.42 a.m.
§ Mr. Graham Page (Crosby)
As hon. Members have said, it is unfortunate that the Bill should have passed through its stages to the Third Reading without any thorough discussion. It is an important Bill. It contains a number of miscellaneous points relating to the relationship of husband and wife. I hope that the House will not consider it merely as a lawyers' Bill. It deals with the relationship of husband and wife, with matrimonial causes, divorce and nullity—matters which perhaps draw us nearer to human problems than any other matter with which we deal in the House. Indeed, such matters raise not only human problems but sociological and religious problems as well.
793 The Bill does not endeavour to deal with any major principles. In particular, it does not endeavour to deal with the rather major principle which has already been raised by my hon. Friends—the liability to maintain what is called a "guilty" spouse. I hope that the House will not, because the Bill may be controversial on that point, disregard the other valuable matters dealt with in it. I understand from the speech of my hon. and learned Friend the Member for Bolton, East (Mr. Philip Bell) that it is merely the question of the maintenance of the guilty spouse which troubles him. Indeed, if his argument succeeds, it is the guilty spouse for whom the "bell" tolls.
The principle that the court has discretion to order maintenance in favour of the guilty party has been recognised by statutory provision for 100 years. I would be inclined to put "guilty party" in inverted commas, because as time has proceeded it has become more and more difficult in divorce and nullity cases to divide the parties into the "guilty" party and the "innocent" party. Very frequently the petitioner for divorce or nullity files a discretion statement admitting matrimonial offences on his or her part. Again, there is very often on the part of the petitioner himself or herself something which we might consider to be intolerable behaviour which has caused the break-up of the marriage but which itself is not a matrimonial offence.
It is interesting to note that Sir Frederick Burrows, one of the six who dissented from the opinion of the majority of the Royal Commission on this point, made some such remark as that, about the intolerable behaviour of the petitioner in another connection. He summed it up very well. In a dissenting note, when dealing with the question of transfer of tenancy and division of property on divorce or judicial separation, Sir Frederick, on page 343 of the Royal Commission's Report, said:The fault does not always lie entirely on the side of the 'guilty' party and it might well occur that the 'innocent' party, by intolerable behaviour, contributes towards the break-up of the marriage and is yet able legally to obtain command of the property of the other spouse.It is undoubtedly the position at present that the court is given discretion in 794 respect of maintenance, and all that the Bill does is to clear up an anomaly with regard to claims against the estate of a woman's deceased husband. It does not alter the general principle of maintenance for a guilty or an innocent party; it merely applies the existing law to a claim against an estate of a deceased spouse.
The difficulty experienced by my hon. and learned Friend arises from Clause 3, which provides for a claim for maintenance against the estate of a deceased spouse. I repeat that the Clause does not alter any basic rights. It does not introduce any new ideas. It merely allows the former wife to apply to the High Court for an order for maintenance against the estate, and the court has full discretion in dealing with the application.
There are certain limitations on such an application. For example, the wife must be domiciled in England, she must not have remarried, and the marriage must have been dissolved or annulled by the High Court in this country. I think that last point is very relevant to the one taken by my hon. and learned Friend, that the court on an application of this sort might have to hear evidence which could not be rebutted because the person against whom it would be given was already dead. By this provision in Clause 3 (6) of the Bill that the application can be made only in the case of dissolution of marriage or order for nullity in the High Court here, the court would have the record of those former proceedings and would be entitled to refer to it——
§ Mr. Philip Bell
Perhaps I did not make the real objection clear. With an ordinary maintenance application which is made when there is a divorce, there is, of course, no third-party interest. The difficulty is that when the first husband is dead, leaving, say, a second wife and children, their interests are brought in.
§ Mr. Page
Clause 3 takes into account, when giving the court discretion, the claims to which the court should have regard. The wife has to satisfy the court that it would have been reasonable for the deceased to make provision for her maintenance and that the court should make such reasonable provision for her maintenance as it sees fit. Clause 3 (4) sets out, as my hon. and learned Friend mentioned, the considerations which the court should take into account.
795 They are, in general, the considerations which the court takes into account under the Inheritance (Family Provision) Act, 1938, when dealing with an ordinary claim of a widow against the estate of the deceased husband. For instance, the court must take into consideration the capital and income of the applicant,… her conduct in relation to the deceased and otherwise … any other matter or thing which, in the circumstances of the case, the court may consider relevant or material in relation to her, to persons interested in the estate of the deceased, or otherwise.It will be seen that the court can take account all the surrounding circumstances, not only of the property itself—whether or not it would be prudent, for example, to dispose of it or to settle it in any way—but also to the dependants of the deceased other than the applicant, his former wife.
There is one other consideration added to those to which the court would have regard under the Inheritance (Family Provision) Act, 1938, and it is contained in subsection (4, c), which says that the court should take into consideration any application made by the wife during the lifetime of the deceased, and should also take into account—if such be the case—why no such application was made. The court, therefore, is directed to take into account all those points raised by my hon. and learned Friend.
This problem arose in a case—Dipple v. Dipple—just prior to the war. There was a divorce in 1938. There was an interim order for maintenance. There were then negotiations between the two parties as to how much maintenance should be paid, but no final order was made. The husband married again the next year. In the following year the husband died and left an estate worth some £6,000. The wife had no final order for maintenance against him during his life. She could make no claim against his estate. This Clause would entitle her in such circumstances to do so, but she would have to satisfy the court that she really was deserving of its consideration.
Under Clause 4, an application can be made at any time to vary an order; so, again, the question of hardship upon other dependants of the deceased is taken into account. In subsection (2) of Clause 4 there is set out a list of those who can apply for the order to be varied. They include the former wife, and other former 796 wife of the deceased, any dependant of the deceased, any trustee of the property, and any person beneficially entitled under the will or under the intestacy of the deceased.
Although I have spoken of this in relation to a wife surviving her former husband, all this also applies in reverse to the former husband of the deceased wife, as it does under the Inheritance (Family Provision) Act, 1938——
§ Mr. Page
To a certain extent, yes, but not in the case of settlements. If one goes back to Section 24 of the Matrimonial Causes Act, 1950, one finds that a guilty husband has not all the rights of a guilty wife. It is therefore not quite the same position, but generally speaking I think that the answer is yes.
It is subsection (3) of Clause 5 that applies this in reverse, namely, to the former husband of the deceased wife. It needs a little adaptation from the 1938 Act, because the husband is entitled, on a divorce, to maintenance from his wife only under certain circumstances. That is to say, the court can give consideration to whether or not to make an order against the wife to maintain him only in certain circumstances; namely, when he is divorced on grounds of insanity, or when he divorces his wife on grounds of adultery, desertion or cruelty, and when the wife has some property of her own in respect of which the court can make an order for a secured provision, that is, for a settlement of that property.
Clause 6 contains provisions supplementary to Clauses 3 and 4, and these are much the same as under the 1938 Act. They protect the personal representatives who distribute the estate without notice of any claim of this sort; they allow a former spouse to obtain a grant if necessary, to the estate of the deceased former husband or wife, as the case may be, and the Clause also provides for the forms of orders to be made on an application of this sort. So much for claims against the deceased spouse's estate, and so much, I think, for the controversial parts of the Bill.
Clause 2 is important, as it applies the well-known bankruptcy laws against 797 fraudulent disposition of property to defeat creditors, to fraudulent disposition of property to defeat a wife's right to maintenance. This, I fear, is going to be one more thing for conveyancers to endeavour to find in titles to property. When I started conveyancing some years ago we had little work to do and we earned large fees for doing very little. Now we earn very small fees for doing a great deal because Parliament has imposed on us more and more duties in searching titles, and this will be one more. Nevertheless, this is a very valuable provision.
The difficulty arose in a case of Burmester v. Burmester. There was a divorce in 1912. There was no order for maintenance, but there was a petition for maintenance in the following year. The wife making that petition heard that her husband, who had then gone to Vancouver, had become quite a wealthy land agent there. More than that, he had become engaged to a lady there and he was threatening to settle all his property on his new wife, as soon as they were married, or even before the mariage, as a marriage settlement. The former wife applied to the court here for an injunction to prevent him doing that while her petition for maintenance was pending. It was held that the court had no power to grant such an injunction.
Therefore, it is the case that a spiteful husband can dispose of his property with the intention of defeating his former wife's claim to maintenance and, as the law stands, she can do nothing about that. The Royal Commission advised strongly that the law should be put right in this respect and that the wife should be given the right, subject to the court's discretion and subject to satisfying the court that she deserves such maintenance as it may order, to apply to the court for that order.
The Royal Commission's recommendations were not quite the same as appear in Clause 2. The Royal Commission recommended that she should be able to make this application within one year after the maintenance order, and that the court should then be able to set aside any disposition which took place within three years before the order. That would have put any such disposition at risk for a period of four years. The Clause as drafted puts it at risk for only 798 three years; the court can set aside such a transaction if it occurred within three years before the date of the application.
Of course, this does not affect a purchaser for value—that is, a person who has acquired any property from the former husband for valuable consideration, in good faith and without any notice of his intention to defeat his wife's claim. It does not affect any disposition by him by will, but it does affect a disposition by means of a marriage settlement, because in subsection (8) of Clause 2 "valuable consideration" does not include marriage. That goes a little further than the bankruptcy laws, but it seems to fit the case here because the case which one wants to meet is that of the husband who, getting married a second time, settles his property on his second wife in order to defeat the claims of his first wife. It seems that in those circumstances the Clause is meeting something which may be a possible injustice, and it certainly carries out the recommendations of the Royal Commission in this respect. So much for Clause 2.
Now I turn to practically the end of the Bill where there is a rather similar provision to Clause 2 to enable the courts to deal better with cases which come before them under the Married Women's Property Act, 1882, involving disputes between husband and wife concerning property. There is, as the House will know, a summary form of procedure under Section 17 of the 1882 Act which enables the husband and wife to come before the court to settle disputes about property.
But there has been this difficulty in such proceedings, that the court has no power to make any order if the property itself has gone, if it cannot be traced. Nor has it any power to order a money judgment. So that, if, for example, the husband has disposed of the property and if it is not possible to trace that property into any other property or into any money, then the court is powerless to make any order. Clause 7 gives the court power to make orders in such a case. If the wife can show that her husband has had in his possession any money or property to which she was beneficially entitled, the power of the court is extended by the Clause to the making of an order for a money payment to the wife.
799 This difficulty clearly arose in the case of Tunstall v. Tunstall in 1950. In this case, to give an example of how the law stood and why it should now be amended, a house was purchased in 1927 for £720 by the husband and wife. In 1950 it was sold for £2,350 and the husband pocketed the money. There was no property and, there were no identifiable proceeds of sale and the court could make no order. It was quite powerless to make any order in favour of the wife. Under this Clause the court would have power to make an order for a money payment to the wife in such circumstances.
In subsection (7) of Clause 7 a further important point is dealt with, inasmuch as the court will have power to order a sale of property. Where the property is still in existence, one would have thought that the reasonable way of settling a dispute between husband and wife would be to say, "Sell the property and divide the proceeds." But the court had not got that power, as was shown in the case of Cobb v. Cobb.
A house at Wisbech was purchased jointly in the names of the husband and wife. The wife's parents came to stay in the house and that caused difficulties between the husband and wife, as it so frequently does, but they both continued to live in the house, as indeed did the parents. Nevertheless the husband took out a summons under Section 17 of the 1882 Act for a settlement of this dispute. His idea was to get the in-laws out by selling the house over their heads—perhaps a very wise idea. But, in fact, the court had no power to order a sale in those circumstances, and he failed. Subsection (7) of this Clause gives the court that power.
Finally, may I turn to the beginning of the Bill, to Clause 1 which clears up a rather ridiculous technical point. It is a point which is related to the time at which a maintenance order may be made. Under Section 19 of the 1950 Act, the court can make a maintenance order if the application is made "on" the making of any decree of dissolution or nullity of the marriage. The word "on" has been interpreted by the courts to mean at the time of what I would call the major decree or a reasonable time, a short time, afterwards. In the 800 case of Scott v. Scott, when this problem was raised very acutely, the court held that seven years afterwards was too long and it could not make an order for maintenance in the circumstances.
The difficulty is usually overcome, in practice, by a wife who, although at the time of divorce she does not require a maintenance order, nevertheless includes an application for it in her petition. The court may then grant her a nominal order of, say, 1s. a month. If the wife is properly advised, that is the way she deals with it. But there have been cases in which the wife says that she really does not wish to make any claim against her husband for maintenance. She makes no claim at the time she lodges her petition for divorce, but afterwards her circumstances change and she does require maintenance from her husband. If she has left it too long, the court has no power to grant it. That technicality is removed by Clause 1 of the Bill. The court will have power to make a maintenance order no matter how long after the decree for dissolution or nullity the application for maintenance is made. Of course, the court must have regard to any delay on the part of the wife in making her application. That is provided for in Clause 1 (5).
I am sure that the House will also give consideration to the delay which I have caused it in being so long over the explanation of this Bill. I am very grateful to hon. Members for bearing with me for this length of time.
§ 12.12 p.m.
Major W. Hicks Beach (Cheltenham)
I am sure that hon. Members on both sides would like me to congratulate my hon. Friend the Member for Crosby (Mr. Page) on the very clear way in which he has explained the Bill, having been called upon at very short notice to do so. I do not agree with all the views he expressed, but he put the matter clearly and, if I may say so, he has been extremely helpful to the House.
The Bill has reached its final stage virtually with no discussion on it. In my view, it is a distinctly controversial Measure, and it brings about very considerable changes in the law. The fact that it has reached this stage shows how important it is for back benchers—I take full responsibility in the House on these matters—to exercise their right to make 801 sure that Private Members' Bills are not allowed to slip through with virtually no discussion. I have, on many occasions, taken appropriate action to prevent this happening, and I very much regret my omission in not doing so in regard to this Bill.
It is said in favour of the Bill that it has the support of the findings of the Royal Commission, although some of the findings were not, I believe, unanimous. It seems to me that nowadays we are getting very near the stage when it is said that any Bill which follows the recommendations of a Royal Commission, which are treated as sacrosanct, should automatically be passed quickly through the House. I profoundly disagree. The recent Report of the Wolfenden Commission supports my argument. A great many of its recommendations I profoundly disagree with, and I would oppose any legislation introduced in the House to carry them out.
From necessity, my intervention has to be extremely brief. Except for Clause 3, I do not object to any Clause in the Bill. My hon. Friend the Member for Crosby suggested that Clause 3 did not really introduce a new principle. I disagree with that view. Clause 3 enables a guilty wife in any circumstances to deprive an innocent husband's estate of part of its assets, possibly in some cases to the detriment of the children of a second marriage. I cannot believe that that is right or in accordance with our principles of British justice. That is my only real objection to the Bill. I hope very much that when it reaches another place careful consideration will be given to it to see that what is, in my view, a cause for very serious reproach can be taken out of the Bill and so that it will not become the law of the land.
It is said—my hon. Friend's argument was extremely impressive—that of course we must not overlook the fact that all these matters and all proceedings to be taken against the estate of a deceased innocent spouse are in the discretion of the court. That is perfectly true, and I should be the last to criticise how High Court judges and other judges exercise their discretion. But there is always a great difficulty about a judge having discretion in matters such as this, because, by and large, if a judge does make a mistake in exercising his discretion, it is 802 very difficult to persuade the Court of Appeal to overrule him.
I do not criticise the Court of Appeal for this, but it is almost always said, in cases concerning maintenance orders, children, or, indeed, property, that these are matters in the discretion of the judge. The court does not think that it should intervene because the judge had had all the evidence before him and made his mind up on the facts. I am always nervous, therefore, when in matters like this discretion is left with the judge, although, of course, in saying that, I do not in any way criticise the judges. This matter should not, in my view, be left to the discretion of the judge, although it is quite correct to say that it did have the limited support of the Royal Commission.
I hold very strongly the view I have expressed about Clause 3. It needs very much more careful thought than has been given to it until now, and I hope that, when the Bill reaches another place, consideration will be given to the comments I have made about it.
§ 12.17 p.m.
§ Sir Frank Soskice (Newport)
Broadly speaking, the Bill is entirely acceptable to the House and, speaking personally, I would entirely support it. Three hon. Gentlemen, however, have spoken about Clause 3, and I intervene particularly because the House may desire to hear the view of an Opposition lawyer. Indeed, the hon. Member for Southend, East (Mr. McAdden) expressed a wish to hear it.
I do not share the doubts expressed about Clause 3. The hon. Member for Southend, East spoke as if the Clause conferred a right. It does not confer a right; it confers only a discretionary claim. It seems to me that, inasmuch as the wife has to establish that, in the first place, it is reasonable, and that, in hearing her claim, the court has to consider her conduct, her own assets and all the circumstances, even if one takes the extreme and rigid view of the guilty spouse taken by the hon. and learned Member for Bolton, East (Mr. Philip Bell), nevertheless the Clause is justified. It merely extends the existing law to the estate of a deceased husband.
Speaking for myself, I do not approach the matter in the same way as the hon. and learned Member for Bolton. East 803 approaches it. I feel that his rigid division of spouses into those who are guilty and those who are not guilty is somewhat too arbitrary and does not correspond with the facts. One has to have a much more flexible approach, and the hon. Member for Crosby (Mr. Page) exactly expressed my own feelings about it. Speaking from this side of the House, therefore, I do not share the doubts about Clause 3, and I hope that the Bill may be given a Third Reading.
§ Mr. McAdden
Am I to understand that what you are saying is that this is a discretionary claim, but——
§ Mr. McAdden
Does the right hon. and learned Gentleman say that this is a discretionary claim? Am I to understand that this is a claim that does not exist at the moment? Is there an alteration in the law or not?
§ The Solicitor-General (Sir Harry Hylton-Foster)
May I assist my hon. Friend the Member for Southend, East (Mr. McAdden), in answering his question to the right hon. and learned Gentleman the Member for Newport (Sir F. Soskice), because I think that it is best to answer the points as we go along. If my hon. Friend will look at the terms of Clause 3, he will see that what it does is to confer a power to make an order upon an application, but there is nothing whatsoever to compel the court to make an order. It confers a right on an applicant to make an application for an order in the circumstances there indicated. That is all it does.
I am very glad to hear that everyone who has spoken, with the possible exception of my hon. and learned Friend the Member for Bolton, East (Mr. Philip Bell), does not oppose the Third Reading of the Bill. One is driven inevitably to the conclusion that it would be an outstanding pity if the House were to deny a Third Reading to the Bill because it objects to the provisions of only one Clause in the Bill. I thought that my hon. Friend the Member for Crosby (Mr. Page) did the House great service in drawing attention to what was done by other Clauses.
The reason why we have reached Third Reading without the sign of slightest 804 opposition to any provision in the Bill is that all the provisions in the Bill, with the possible exception of Clause 3, are heartily welcome to hon. Members on both sides and it would clearly be the greatest pity to lose the advantage of the other provisions simply because Clause 3 has been allowed to reach this rather, if I may say without impertinence, strained Third Reading debate without anybody succeeding in getting on to the Order Paper at any stage anything that would raise a debate on Clause 3.
It is easy to understand that some people feel that it is always wrong that the so-called innocent party to the divorce should be required to pay maintenance to the so-called guilty spouse. But, of course, the discussion is not about that point. That has been part of our law for a long time and will remain part of our law when the Bill is enacted. There is a distinction between a power in the court to make the so-called innocent spouse support the so-called guilty spouse during life and a power which is new under the Bill to permit the court to make an order against the estate of the so-called innocent spouse.
I hope that my hon. Friends who have objected to that conception will bear in mind how difficult it would be to justify a different principle after death from what can be done during the life of the spouse. The sole difference that anyone can suggest is that developed by my hon. Friends, namely, that after his death a man may not be able to defend himself against the assaults upon his estate of the guilty ex-wife. Of course, that is true. I do not think there is necessarily a distinction, as one of my hon. Friends suggested, that after death the children of a second marriage may be interested in the estate. They are very often present during life, because the second marriage occurs during life and the question of making provision for the guilty first wife may arise during life in the same way.
I hope that the House will take the view—and I speak on behalf of the Government in saying this—that sufficient power is provided for the court to take into account every consideration of that kind, namely, the needs of other persons interested in the estate of the deceased, and that there is sufficient provision to enable a wise judge to take into 805 account all those factors before he thinks of making provision out of the estate for the guilty spouse. The existing power to make provision during the life of the innocent party has been used very sparingly indeed and I think that the power to make provision out of the estate would be used even more sparingly in the altogether exceptional case.
On the other hand, the fact that that is altogether exceptional is not, in our belief, a reason for not making an enactment to deal with it. It is true that this was supported by a majority recommendation of the Royal Commission, but it is right to point out that the minority desired to put an end to the existing power to make provision for a guilty spouse during the life of the innocent spouse. If we follow the existing law, and do not change it, as is clearly the intention of those who oppose Clause 3, because they made no attempt during the passage of the Bill to effect that change, it does seem an extreme position to take up, namely, that one must not deal with the position after death on the same principle as the law deals with the position during life.
I hope that my hon. Friends who are opposed to the principle see how narrow is the extension made by the Bill in this field and do not feel that their opposition to Clause 3 as it stands could in any way justify depriving the public of the valuable provisions contained in the rest of the Bill, particularly those provisions that will put an end to what I might call ex-spouses' stripping.
§ Question put and agreed to.
§ Bill accordingly read the Third time and passed.